Sense­less and pro­tracted

The Philippine Star - - OPINION - Email: at­tyjos­esi­ JOSE C. SISON

Un­der Ar­ti­cle 36 of the Fam­ily Code, a mar­riage con­tracted by any party who, at the time of the cel­e­bra­tion, was psy­cho­log­i­cally in­ca­pac­i­tated to com­ply with the es­sen­tial obli­ga­tions of mar­riage may be de­clared void from the be­gin­ning even if such in­ca­pac­ity be­comes man­i­fests only af­ter its sol­em­niza­tion. And one of the es­sen­tial mar­i­tal obli­ga­tions un­der the Fam­ily Code is to pro­cre­ate chil­dren which can be achieved only by hav­ing sex be­tween hus­band and wife. Hence, can the sense­less and pro­tracted re­fusal of a hus­band to have sex with his wife be con­sid­ered as psy­cho­log­i­cal in­ca­pac­ity? This is the is­sue re­solved in this case of Richard and Jes­sica.

Richard is a young Chi­nese busi­ness­man who would like to set­tle here in the Philip­pines. And he be­lieved that the eas­i­est and most ex­pe­di­tious way to do so is to get mar­ried to a Filip­ina. For­tu­nately, he met Jes­sica, a young Filip­ina who was then al­ready of mar­ry­ing age and so ea­ger to get mar­ried. Thus, af­ter a whirl­wind courtship, Richard and Jes­sica got mar­ried at a Cathe­dral with a grand re­cep­tion at a pres­ti­gious Villa.

There­after, they pro­ceeded to the house of Jes­sica’s mother where they slept on the same bed, in the same room for the first night of their mar­ried life. How­ever, con­trary to Jes­sica’s ex­pec­ta­tion that they would be mak­ing love as a newly wed­ded cou­ple, Richard just slept on one side of the bed and did not have sex­ual in­ter­course with her. The same thing hap­pened on the sec­ond, third and fourth nights.

Then in an ef­fort to have their hon­ey­moon in a pri­vate place where they can en­joy be­ing alone to­gether dur­ing their first week as hus­band and wife, they went to Baguio City. But Richard in­vited Jes­sica’s mother, his mother and an un­cle and nephew and stayed in the City for four days. And dur­ing this pe­riod, there was no sex­ual in­ter­course be­tween them be­cause Richard avoided Jes­sica by tak­ing long walks dur­ing siesta time or by just sleep­ing on a rock­ing chair in the liv­ing room.

And for the next ten months, there was no at­tempt on the part of Richard to have sex­ual in­ter­course with Jes­sica al­though they slept to­gether in the same room and on the same bed. Jes­sica did not even see her hus­band’s pri­vate parts nor did he see hers. So they sub­mit­ted them­selves to med­i­cal ex­am­i­na­tions by a urol­o­gist who found Jes­sica to be healthy, nor­mal and still a vir­gin. The re­sults of Richard’s phys­i­cal ex­am­i­na­tions and pre­scribed medicines were how­ever kept con­fi­den­tial. The doc­tor asked Richard to re­turn but he never did.

And so the dis­traught Jes­sica al­ready filed a pe­ti­tion for dec­la­ra­tion of nul­lity of their mar­riage on the ground of Richard’s psy­cho­log­i­cal in­ca­pac­ity to per­form his mar­i­tal obli­ga­tions. Jes­sica claimed that Richard is im­po­tent, a closet ho­mo­sex­ual as he did not show his pri­vate parts, and some­times used an eye­brow pen­cil and the cleans­ing cream of his mother. She also claimed that Richard mar­ried her just to ac­quire and main­tain his res­i­dency here, and to make it ap­pear that he is a nor­mal man.

Richard op­posed this pe­ti­tion and claimed that if their mar­riage should be an­nulled, the fault lies with Jes­sica. But he averred that he does not re­ally want his mar­riage with Jes­sica an­nulled be­cause he loves her; that he has no de­fect and is phys­i­cally and psy­cho­log­i­cally ca­pa­ble. And since their re­la­tion­ship is still young, any dif­fer­ences be­tween them can still be rec­on­ciled. Fur­ther­more he con­tended that if ei­ther one of them has some in­ca­pac­i­ties there is no cer­tainty that it can­not be cured as there are med­i­cal and sci­en­tific tech­nolo­gies al­ready avail­able.

Richard also claimed that the lack of sex­ual con­tact be­tween them for al­most ten months un­til their sepa­ra­tion is due to the fault of Jes­sica who al­ways avoided him when he wants to have sex­ual in­ter­course with her. He also al­leged that he forced Jes­sica to have sex with him only once but did not con­tinue be­cause she was shak­ing and did not like it. He also sub­mit­ted the phys­i­cal ex­am­i­na­tion re­port of a physi­cian stat­ing that there is no ev­i­dence of his im­po­tency.

But the RTC granted Jes­sica’s pe­ti­tion and de­clared her mar­riage to Richard, void from the be­gin­ning be­cause of Richard’s psy­cho­log­i­cal in­ca­pac­ity. This de­ci­sion was af­firmed by the Court of Ap­peals but Richard still went to the Supreme Court claim­ing that Jes­sica was not able to prove his psy­cho­log­i­cal in­ca­pac­ity.

The SC how­ever de­nied his pe­ti­tion. The court said that Richard him­self ad­mit­ted he did not have sex­ual re­la­tions with his wife for al­most ten months of co­hab­i­ta­tion de­spite the fact that he is not suf­fer­ing from any phys­i­cal dis­abil­ity. Such ab­nor­mal re­luc­tance or un­will­ing­ness to con­sum­mate his mar­riage is strongly in­dica­tive of a se­ri­ous per­son­al­ity dis­or­der which demon­strates an ut­ter in­sen­si­tiv­ity or in­abil­ity to give mean­ing and sig­nif­i­cance to the mar­riage within the con­tem­pla­tion of Ar­ti­cle 36 of the FC. This sense­less and pro­tracted re­fusal to have sex­ual con­tact is equiv­a­lent to psy­cho­log­i­cal in­ca­pac­ity. Richard’s plea that it was Jes­sica who did not want to have car­nal knowl­edge with him does not in­spire be­lief. At any rate, it is im­ma­te­rial who re­fuses to have sex with the other. What is im­por­tant is the lack of sex­ual in­ter­course be­tween them for al­most ten months which shows that ei­ther of them is psy­cho­log­i­cally in­ca­pac­i­tated. So their mar­riage is re­ally void (Chi Ming Tsoi vs. Court of Ap­peals etc, G.R. 119190, Jan­uary 16, 1997).

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